The Border Security,Asylum and Immigration bill

Introduction

The Border Security, Asylum and Immigration bill is presently being considered by the House of Lords. It is the first wide-ranging immigration-related piece of legislation of the Labour government following the May 2025 general election. The bill gives a clear indication, therefore, of the approach the new government will take to immigration and asylum. It is not unreasonable to think a new approach would be taken. In a statement to the House of Commons Home Secretary Yvette Cooper criticised the previous government as regards net migration, asylum and border security and stated that action was being taken to ‘turn that around’. ¹ Initial developments suggested that a new and less illiberal approach would be taken. The Labour government scrapped the use of the Bibby Stockholm barge to detain asylum seekers, and as put an end of the plan to summarily send persons arriving on small boats on UK shores to Rwanda. The stated reasons for the change of policies, however, does not appear to be humanity and human rights. Rather it is effectiveness and cost-efficiency. ² The question, then, is whether the Border Security, Asylum and Immigration bill will continue along the same line as the previous Conservative government or mark a new and welcome departure in immigration and asylum law and policy. The answer appears to be the former, albeit through slightly different means.

The context

The context of the Border Security, Asylum and Immigration bill includes an environment where immigration-related issues have been highly politicised. Indeed, there ‘… is a consensus among scholars that migration issues have often been politicised in a negative way and associated with various forms of insecurity (terrorism, social unrest, criminality etc.) in the media, while populist right-wing parties have been the driving forces of this process of politicization’. ³ This, in turn, has led to the demonisation of refugees and asylum seekers and the creation of a hostile environment for those unlawfully within the country. As to the hostile environment, for well over a decade UK governments have explicitly carried out a policy to create a particular experience for irregular or unlawful immigrants. The idea is ‘… to make life in the UK intolerable for those who were unlawfully resident by cutting them off from the necessities of life and preventing access to public services’. ⁴ Related to the politicalisation of immigration and the hostile environment are public attitudes to immigration. That relationship is undoubtedly complex, with questions over the extent to which political rhetoric has affected public opinion or, rather, public opinion has engendered political antipathy to immigration and asylum. There is evidence, however, that in October 2024 concern about immigration was the top ‘most important issue’ for members of the public. ⁵

Providing important numerical context to the subject of immigration and asylum are four statistics. These are net migration numbers, asylum applications, the scale of persons arriving on small boats and the total fertility rate in England and Wales. These figures begin to paint a picture of what is happening, and ideally what should happen, as regards immigration. Of course, there are many other important factors including the provision and affordability of public services, social cohesion, adherence to international legal obligations and humanity and human rights. A basic picture, however, can be painted by the four numbers. Net migration to the UK to the year ending June 2024 was 728,000. ⁶ This is the figure of persons arriving less persons departing the UK. This is very high in historical terms. There were 84,000 asylum applications relating to 108,100 individuals in 2024. ⁷ Small boat arrivals make up around 3–4% of overall immigration. In 2024, approximately 36,800 people arrived in the UK by small boat. The largest percentage of the 728,000 net arrivals came to the country on work visas. In a different and important vein, it should be highlighted that the UK is undergoing a severe demographic transition. In 2023, the total fertility rate in England and Wales dropped to 1.44 per woman, its lowest level since records began in 1938. ⁸ In order to maintain a stable population, without net-migration and unchanged mortality, a total fertility rate of 2.1 children per women is required. ⁹ From this perspective, there is a pressing need for immigration for economic and societal reasons. This is simply to ensure that there are enough young and working-age people to fill vacancies and fund the state.

What the bill does and does not do

An initial general point is that the bill fails to take a holistic view of immigration and asylum and its place in the UK's economic and societal future. As with previous governments, the bill is short term and reactionary in the sense of attempting to address particular issues, whether real or imaginary, existing at a particular point in time. That noted, an indication of the future direction of travel of the Labour government can be gleaned from the bill. Parts 1 and 2 of the bill are of particular significance. They are the sections of the bill that relate to immigration and asylum.

Part 1 of the bill is concerned with border security. It creates a Border Security Commander and new and extended offences. The former will have responsibilities for reducing, inter alia, the entry to the UK of people whose arrival or entry is regarded as contrary to UK law. The new or expanded offences are intended to further deter or prevent people from coming to the UK to seek asylum. ¹⁰ Notably, these offences manifest a novel approach to criminalising certain immigration-related acts. The offences of supplying and handling articles for use in immigration crime and viewing, accessing or collecting information for use in organised immigration crime are created under sections 13, 14 and 16, respectively. These are pre-inchoate or precursor crimes.

Pre-inchoate offences centre on acts that take place before an attempt, incitement or conspiracy to commit a substantive crime (attempt etc. being long-established inchoate crimes generally relating to acts that directly lead to, or are intended to directly lead to, the commission of the substantive offence). In this case those substantive offences include illegal entry to the UK under section 24 of the Immigration Act 1971 and assisting unlawful immigration to the UK under section 25 of that Act. The rationale behind the extension of these offences includes to ‘target prerequisite equipment’ and to ‘enable law enforcement to act at [an] early, preparatory stage’. ¹¹ It is notable that pre-inchoate offences, although rare and relatively novel, are found in relation to certain terrorist-related crimes. Their inclusion in the bill may be reflective of the approach the Labour government is taking to immigration – equating it in some sense to terrorism. Further, pre-inchoate crimes arguably entail the danger of extending criminal liability to acts which may not entail a real risk of leading to a substantive offence, and may well implicate innocent conduct. ¹² Overall, Part 1 is a continuation and indeed expansion of the approach of the previous government in that it centres upon immigration enforcement and criminalisation.

Part 2 of the bill is, prima facie, a break from previous policy in that it is set to repeal certain facets of the Conservative government's asylum legislation. The Safety of Rwanda (Asylum and Immigration) Act 2024 is to be repealed in full. Parts of the Illegal Migration Act 2023 are also to be repealed. The 2024 Act was introduced following the judgment of the Supreme Court in AAA and others v Secretary of State ¹³ which held that the Migration and Economic Development Partnership between the UK and Rwanda was unlawful. The repeal of the Act gives effect to Labour's election manifesto promise to scrap the Rwanda scheme. Amongst the provisions repealed in the Illegal Migration Act 2023 are those which rendered individuals entering the UK through ‘illegal and irregular’ means ineligible of British citizenship. This is positive. The United Nations High Commissioner on Refugees has welcomed these developments, having previously observed that both Acts are inconsistent with the UK's international obligations. ¹⁴ The Nationality and Borders Act 2022, however, is unaffected by the bill. It, inter alia, provides for the differential treatment of refugees according to whether they arrived in the UK directly from their country of origin or not.

In contrast with the repeal of the 2024 Act and partial repeal of provisions in the 2023 Act is the retention of sections in the 2023 Act which particularly align with the previous government's illiberal approach to asylum seekers and refugees. One of which is section 12. Relating to immigration detention, it provides that a person may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable, inter alia, the removal to be made. Section 59 is also retained. It provides for an expanded list of countries which are deemed safe in the asylum context by the Home Secretary. This means nationals from those countries can be removed back to them without consideration of their asylum claim. The 2023 Act expanded the list from EU states to include Albania, Georgia and India. This position is at odds with the requirement under the Refugee Convention 1951 for an individualised assessment of asylum claims. ¹⁵ Rules widening the exclusion of victims of slavery and human trafficking from certain protections were also retained, found within section 29. That section permits the Home Secretary to withhold protection from a victim of slavery or human trafficking based on a previous conviction or sentence. The problem here is that some refugees and asylum seekers may necessarily commit an offence by entering the UK to claim asylum in the first place.

A final Part 2 provision in the bill to be noted is clause 43. It provides that conditions may be applied to persons who are on limited leave to remain and those on immigration bail. These are an electronic monitoring condition, a requirement to be at a particular place between particular times, and a requirement to remain in a particular area or be prohibited from being in one. These conditions add to those already in section 3(1)(c) of the Immigration Act 1971 and schedule 10 to the Immigration Act 2016, including restrictions on work, study and recourse to public funds. These new conditions are in some sense notably more restrictive. They mirror somewhat those applied to persons suspected of terrorism under the Terrorism Prevention and Investigatory Measures Act 2011, although without the level of oversight.

Conclusion

The Border Security, Asylum and Immigration bill puts paid to the belief that the Labour government would fundamentally change UK immigration law and policy. There have been changes. Most notably the plan to summarily remove asylum seekers and refugees to Rwanda was scrapped. Many other facets of the previous government's approach to the subject remain. The Nationality and Borders Act 2022, and parts of the Illegal Migration Act 2023, remain on the statute books. Putting forward what is, it is submitted, a reasonable view is the NGO Amnesty International UK. It notes that the Border Security, Asylum and Immigration bill ‘… pursues the same harmful approach of previous governments – making prevention, deterrence, punishment and enforcement the priorities of immigration and asylum policy rather than respecting human rights and sharing asylum responsibilities’. ¹⁶ Simply, the bill appears to reflect the weight of the politicalisation of immigration and asylum upon Labour. It is a retrograde and timid initiative that fails to take a reasoned, holistic and long term position on the vitally important issues of immigration and asylum.